ConfirmThem

http://www.citizenlink.org/content/A000007570.cfm

"GOP promises consequences for inaction.

Promise made. Promise broken.

Earlier this year, Democratic U.S. Sens. Harry Reid, Nev., and Patrick Leahy, Vt., promised to schedule U.S. Senate votes on three appellate court nominees before Memorial Day. But, they never got around to it.

Three of the nominees who have been waiting the longest — Peter Keisler, Robert Conrad and Steve Matthews — continue to wait.

Curt Levey, executive director of the Committee for Justice, said the agenda is clear.

“The left-wing groups — People For the American Way, Alliance for Justice, the ACLU (American Civil Liberties Union) — desperately want these spots on the 4th Circuit and D.C. Circuits kept open for what they hope will be liberal activists,” he said.

Sen. John Cornyn, R-Texas, sits on the Judiciary Committee and said he has a promise of his own: repercussions.

“This will be a subject of further discussion — and action," he said.

Levey said he's fairly sure a Senate shutdown is looming."

Leahy: "In light of Republican criticism of my efforts to expedite consideration of President Bush's Sixth Circuit nominations, I have said that the nominations would be scheduled for committee consideration after we received updated ratings from the ABA. Now we have and I plan to include them on the agenda for the committee's business meeting on June 12. I trust that all Senators will be prepared to consider and vote on the nominations at that time. That should provide the Senate with the opportunity to consider them before the July 4 recess."

Source: http://thomas.loc.gov/cgi-bin/query/z?r110:S03JN8-0020:

I just read Leahy's statement - the condensed version is something like: Mean republicans obstructed Clinton nominees at every turn, while pure, virtuous democrats have been a model of fairness in confirming Bush's nominees. What hogwash.

It did have this hint about Glenn Conrad:

"The Fourth Circuit now has fewer vacancies than it did when Republicans claimed no more judges were needed, and fewer vacancies than at the end of the Clinton administration. I have already said that once the paperwork on President Bush's nomination of Judge Glen Conrad to the Fourth Circuit is completed, if there is sufficient time, I hope to move to that nomination."

I suspect that if the GOP senators on the judiciary press to get action on Kiesler and other nominees, there suddenly won't be "sufficient time" to process Conrad.

Murphy will also get his vote on June 12.

I agree with you. Leahy will use Glen Conrad as a pawn to delay any consideration of Keisler, Robert Conrad and Steve Matthews until after the July 4th break. Then he will invoke the Thurmond Rule to keep those three in committee.

The question then becomes, is the confirmation of Glen Conrad worth ditching the other three? It may secure more Republican seats on the Fourth Circuit, but is it worth it in the long run.

I am somewhat angry now at Raymond Randolph for taking senior status on the D.C. Circuit in November. If Reid and Leahy are going to refuse to confirm Keisler under any set of conditions, Randolph has just handed over a conservative appellate seat to the liberals for no good reason. Any Republican judge who takes senior status from now until Bush leaves office in January 2009 is practically begging for a liberal replacement.

I don't think the GOP can justify giving up on Keisler. He offers, without question, the best opportunity for the GOP to make a case regarding the unjustified obstruction of judicial nominees. Kiesler's resume is absolutely sterling. The testimonials on his behalf, from both sides of the aisle, are glowing (see Ed Whelan's post in Bench Memos from September 18, 2007, for a summary of the statements in support of Kiesler's nomination from liberals, including opposing counsel in the Hamdan case). He was first nominated on June 29, 2006, and had his hearing on August 1, 2006, but since then there has been no action on his nomination - a period of almost two years. This has happened despite the fact that a long-running dispute over the 12th seat on the DC Circuit has been resolved by shifting that seat to the 9th Circuit in 2009. That's a story the GOP needs to put before the widest possible audience and that it should be eager to tell. Judges are a winning issue for the GOP, and the GOP is involved in several tight Senate races in nominally red states where this issue would play particularly well (I'm thinking of MS, NC, KY, LA and TX, in particular). Not only that, but it would also offer a perfect chance for McCain to contrast himself with Obama. This is a rare chance for the GOP to pick a fight on favorable ground this year - I think the GOP has to take it, even if it means missing out on confirming Conrad. But I also suspect that the dems won't want to give the GOP such an easy opportunity to rile the base, and that if push really came to shove the dems would cave on Kiesler.

Who's with me? Let's go!!!

I hate to double-post, but Bobo's comment on Judge Randolph taking senior status sparked another thought. The so-called "rule of 80" provides that a judge may take senior status when the judge's age (minimum of 65) and years of service add up to 80. Judge Randolph turns 65 this year, and has more than 15 years of service, so he is basically taking senior status at the first opportunity. While I'd be grateful if he grimly held onto his seat until it was certain that he would be replaced by a GOP President, if he is ready to enjoy his golden years with a lighter work-load that's not something I really feel like I can hold against him.

What I don't understand, however, is conservative judges who have continued to serve on active status into their advanced years, and who thus have made it more likely that they will be replaced by a liberal president. A judge can maintain a full work load on senior status, if they so choose. Thus, why not take senior status when you can be confident that your seat will be filled with a judge that shares your judicial philosophy? For instance, Judges Davis (b. 1936), Jolly (b. 1937) and Wiener (b. 1934) are all currently active, GOP-appointed judges on the 5th Circuit who have been eligible to take senior status since 2002 or earlier. Those seats could have been filled by quality conservatives (Lee Rosenthal, Ted Cruz, etc.). Instead, all those seats are unnecessarily at risk now. That's a shame.

of this post, the Calif. situation could give McCain an outside shot at winning the state in Nov. I hope he goes after it, hard.

but probably not unexpected. Again, this could help focus things for McCain's benefit.

Calif. court refuses to stay gay marriage ruling

Jun 4 12:47 PM US/Eastern
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SAN FRANCISCO (AP) - California's highest court has refused to stay until after the November election its decision legalizing same-sex marriage in the state.
Conservative religious and legal groups had asked the California Supreme Court to stop its order from becoming effective until voters have the chance to weigh in on the issue.

An initiative that would amend the state constitution to ban gay marriage has qualified for the ballot. Its passage would overrule the court's decision.

The Supreme Court says its ruling will be final at 5 p.m. on June 16.

Wednesday's denial clears the way for gays and lesbians in the nation's most populous state to get married starting June 17, when state officials have said counties must start issuing new gender- neutral marriage licenses.

As a follow up to Mose's comment above, Murphy got his ABA rating announced today - WQ.
http://www.abanet.org/scfedjud/ratings/ratings110.pdf

en banc hearings

only active judges sit en banc right? and you need a majority of them to reverse a panel decision, right?

I'm asking because of the 4th circuit decision that struck the VA PBA case. By my accounts the current active judges on the 4th who would reverse the panel are: Williams, Wilkinson, Niemeyer, and Shedd. the ones who whould affirm are Motz, Michael, King, Traxler and Gregory. The wild cards are Duncan and Agee(although I don;t know if Agee would count since he wasn't active when the case was heard, would he still get to sit en banc?)

Anyway, considering there's clearly 5 votes on the SC to reverse, VA's best move hear is to forget the en banc and appeal directly to the SC where they will surely win.

http://bench.nationalreview.com/post/?q=MjUzOTk1YThmNjIwMTJmM2U0ZWViMjQ0...

Sounds like Mitch is pretty unhappy.

Now are there enough GOP Senators with balls to shut down the Senate and push through the remaining GOP nominees.

looks like VA petitioned the entire 4th circuit to rehear the PBA case.

My my count they have Williams, Wilkinson, Niemeyer and Shedd as definite votes. They need 2 more. Duncan and Agee would seem to be the best bets. If Conrad gets confirmed, he would likely be a good bet to reverse as well. Perhaps that fact alone might scuttle his confirmation.

I know Duncan is a Bush appointee but I don;t know much about her. Has she been generally conservative?

In any event, even if they win, the losers will just appeal to the SC. I still think VA would have been better off just skipping this middle step and going straight to the SC.

Thanks to McConnell, the clerk is being forced to read the entire global warming bill out loud. Senate is at a complete standstill. Finally...some action (or inaction, as the case may be).

"A judge who joins the [4th Circuit] after a petition has been submitted to the Court, and before an order has been entered, will be eligible to vote on the decision to hear or rehear a case en banc. 4th Circuit Local Rule 35(b).

"An en banc hearing will be before all eligible, active and participating judges of the Court. An en banc rehearing will be before all eligible and participating active judges, and any senior judge of the Court who sat on the panel that decided the case originally." 4th Circuit Local Rule 35(c).

I'm not sure where things stand in the case, but those rules should provide the answer regarding Judge Agee's participation.

"In light of Republican criticism of my efforts to expedite consideration of President Bush's Sixth Circuit nominations...."

Uh no, they criticized that he said he would hold votes on three circuit nominations and then he reneged on that promise. It was only later that he said it only applied to three particular ones and not any of the three others who'd been in line for months and months.

What makes you think that Traxler is a vote to affirm the panel? He is a conservative judge (despite being a Clinton appointee). He voted to deny rehearing last time around because of SCOTUS precedent. FYI, Luttig also voted to deny the en banc rehearing. This time, I think Traxler would vote to grant it.

so it looks like it will come down to Duncan.

Anyone have any clue how she'll go?

Wilkinson also concurred in denial of rehearing en banc last go round, but he too is a likely vote to grant it this time.

I had figured Traxeler would deny because he was a Clinton jduge but based on what you just wrote, maybe not.

I think Williams, Wilkinson, Niemeyer and Shedd are definites to rehear. If 2 of 3 of Agee, Duncan and Traxler say yes, VA will likely win.

Since you seem to know the 4th, do you have any insight on Duncan? I know she's a Bush apointee but has she been conservative? Is she likely to reverse the panel?

It is amazing that you can have 5 SC jsutices uphold the federal PBA ban, that you can have Justice Kennedy who also would have upheld the Nebraska ban, and you still have 2 liberal judges who will strike down the VA ban, even aftr the SC expressly told them to reconsider after Carhart II. Hopefully the en banc panel reverses and it ends there. Based on the current court, the pro choicers would lose at the SC so I dount they'd appeal an en banc rehearing.

Thins could get dicey if she does so again. hope she doesn't/

She is no Williams or Niemeyer, but she is fairly conservative. I clerked on the 4th, so I kind of got a feel for the judges there. I don't know Agee, but knowing the Court he came from, I would imagine him to also be a vote to rehear.

...that relates the current Senate shutdown (courtwatcher #13) to judicial nominees:

http://thehill.com/leading-the-news/gop-holds-up-senate-over-judicial-no...

http://afjjusticewatch.blogspot.com/2008/06/gop-stall-senate-procedures-...

"This afternoon, Senate Republicans started to make good on their threats to “shut down the Senate” if their Democratic colleagues don’t speed up the confirmation of President Bush’s pending circuit court nominees. According to The Hill, “Minority Leader Mitch McConnell (R-KY) objected on the Senate floor to Reid’s efforts to speed debate on climate change by forcing the clerk to read a 500-page substitute amendment.”

Talk about a "scorched earth" policy! This latest ploy shows that GOP senators will stop at nothing to ensure a complete conservative takeover of the federal judiciary."

http://www.pfaw.org/pfaw/general/default.aspx?oid=25216

“Once again, the Senate Republicans are throwing a fit, demanding to have more Bush judicial nominees confirmed in the waning months of President Bush’s term. This time, they’re gumming up the works in the Senate with a parliamentary maneuver, effectively shutting down the Senate as it works on the global warming bill.”

“The Senate shouldn’t be held up by partisans trying to prolong the fading Bush presidency by demanding that the Senate confirm controversial judges nominated by a lame duck with the lowest approval ratings in recorded history.

“We have called on Senator Harry Reid to stop the confirmation of controversial judges in this bitter partisan atmosphere. We applaud him for resisting Senator McConnell’s pressure tactics.”

http://www.politico.com/blogs/thecrypt/0608/Not_that_anyones_watching_bu...

"Overshadowed by the hype of Barack Obama's victory lap on the Senate floor today is a simmering dispute between Majority Leader Harry Reid and Minority Leader Mitch McConnell over President Bush's remaining judicial nominees.

McConnell has essentially shut down the Senate floor this afternoon by forcing the Senate clerk to read aloud the entire 500 page global warming bill. So if legislative language is your thing, turn on C-SPAN and watch the Senate at its best, or worst, depending on your perspective."

http://www.washtimes.com/news/2008/jun/04/senate-minority-leader-mitch-m...

"A half-hour into the reading, assistant legislative clerk Kathleen Alvarez had barely finished the table of contents of the massive measure. A spokesman for Mr. McConnell said the obstruction will last all day.

Eight appellate court nominees have been approved this Congress, which Republicans say is only half the rate it should be. They also say Senate Majority Leader Harry Reid of Nevada failed to meet his pledge to confirm three appellate nominees by Memorial Day.

Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, on Tuesday announced he would schedule committee votes on two appellate court nominees, but both are sought by Democrats, so Republicans say they shouldn't count as progress toward confirming Mr. Bush's choices.

Mr. Leahy said his committee has made historic efforts to fill judicial slots, and with confirmation of the two judges he's proposed vacancies on the appeals courts would be in the single digits."